“We will give our judgment as soon as we are in a position to do so,” Chief Justice Frank Clark said in a low voice as everyone in the courtroom stood.
The tipstaffs fluttered around behind the seven Supreme Court judges in the Hugh Kennedy court, as the Chief Justice’s customarily courteous thank yous to the lawyers appearing in front of him brought the two-day hearing to a close.
The ranks of lawyers gathered their boxes and files, while the members of the public – many of them elderly and male – heaved themselves to their feet and stretched. It was past 5pm, an hour later than the court usually sits. Though nobody mentioned it – you don’t hurry along the Supreme Court – everyone knows there’s a clock ticking.
The court was hearing an appeal taken by the State after a High Court decision on an asylum/deportation case last summer. Mr Justice Richard Humphreys had upheld the right of a Nigerian man – long since refused asylum – to challenge the Minister for Justice’s decision to deport him. There’s nothing especially unusual about that; judicial reviews in asylum cases are common. However, in this case the man facing deportation had a pregnant Irish partner.
It was the grounds for Mr Justice Humphreys’ decision that catapulted this case into the limelight, led to an accelerated hearing in the Supreme Court and now threaten the substance and timing of the abortion referendum that the Government has pledged to hold in May.
Rights of unborn
Mr Justice Humphreys decided that the Minister was obliged to consider the rights of the unborn child when deciding to deport its father. He held the unborn has constitutional rights beyond the right to life in article 40.3.3 – ie, the Eighth Amendment – and is a “child” within the meaning of article 42A of the Constitution, inserted as a result of the 2012 children’s rights referendum.
Mr Justice Humphreys found that an unborn child, including of a parent facing deportation, enjoys “significant” rights and legal position at common law, by statute, and under the Constitution, “going well beyond the right to life alone”.
The judge also interpreted the children’s rights amendment as affording protection to all children “both before and after birth”. Until then the rights of the unborn had been interpreted to mean the right to life inserted by the Eighth Amendment. But Mr Justice Humphreys said the unborn’s rights went far beyond that. The question of the rights of the unborn has been touched on by judges before and after the amendment. But they have never achieved the clarity or definition Mr Justice Humphreys did in his judgment. This was new law, to be sure. And unless the Supreme Court strikes it down, it will remain the law.
Forthcoming referendum
The implications for the forthcoming referendum are obviously significant, if uncertain. Throughout the two days of intense argument and examination the amendment was ever present, as the judges tested and questioned, grimaced, nodded, furrowed their brows and made careful notes.
To say the phalanx of barristers in court – six for the State, four for the Nigerian applicant – were put through their paces hardly covers it. The questioning by the judges was lengthy, precise, intense. And it seemed – though everybody says you cannot rely on this – to contain a fair bit of scepticism about the State’s arguments.
But it wasn’t just about the Eighth Amendment; the plaintiff’s case is that the unborn has rights elsewhere in the Constitution, and not just in the children’s rights amendment, either. The court repeatedly explored this avenue.
Maurice Collins SC, for the plaintiff, characterised the State’s case as follows.
“If you take away the Eighth Amendment, the foetus up to birth is entirely invisible.”
State’s position
Nuala Butler SC, for the State, said that it was her case that it “was not possible to say” if the unborn’s rights predated the Eighth Amendment being adopted in 1983. The judges repeatedly invited her to give the State’s position on whether the Constitution before 1983 contained rights for the unborn. But she had no instructions on it.
“We have to – or we may have to – decide whether it did or whether it did not,” the Chief Justice said. “I think the court would like to hear what the Minister has to say about it...It is a live issue today. We may have to give a decision on this.”
If there was a right to life before 1983 for the unborn, then there “had to be a constitutional personality”, he said. Three or four of the justices seemed to be nodding their heads at this one.
“It seems remarkable to me that notwithstanding numerous requests from this court the Minister steadfastly refuses to give his views,” observed Mr Justice McKechnie.
Predated the Eighth
The question of where unborn rights are protected in the Constitution is important because if they exist outside the children’s rights amendment and the Eighth Amendment then those rights must have predated the Eighth.
For the purposes of the referendum, of course, it would mean that they could survive the deletion of the Eighth. It isn’t difficult to see how this would complicate things in the referendum. It would mean that extinguishing the Eighth wouldn’t necessarily extinguish the rights of the unborn.
If the court agrees with that view, it would mean that – at the very least – the wording of the new article would have to be sufficiently strong to override the pre-existing rights of the unborn.
That is why the current wording – despite widespread assumptions to the contrary – is only a draft wording. It will be the wording if the Supreme Court completely and unequivocally reverses the High Court judgment. But even then it will be contingent on what the court rules the law to be.
Timing
The other uncertainty is timing. The Government has said it wants to finalise a wording by March 6th – less than a fortnight away. For the Supreme Court to finalise a judgment in a case of this nature over a week would be remarkable.
Asked when they expected a judgment in the case, one of the senior counsel leaving the Supreme Court replied, “No idea”. And then, on reflection, they added, “Maybe six weeks”.
For a May referendum to be possible, the Government needs to finalise a referendum wording and propose the legislation shortly. Maybe not by March 6th, but not much longer after that. The Supreme Court case is clearly an obstacle to that timetable. The content of the judgment may turn out to be a bigger threat.
